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Ability to Work Rotating Shifts Upheld By First Circuit as an Essential Job Function

As Published in the June, 2018 Issue of the PELRAS Newsletter

Published on: Fri 8th Jun, 2018 By: Julie Aquino

The operator of a Burger King franchise recently prevailed in a lawsuit under the Americans with Disabilities Act (“ADA”) involving an assistant manager who was unable to work a rotating schedule due to psychological conditions incurred during a robbery. Sepulveda-Vargas v. Caribbean Rests. LLC, 888 F.3d 549, 552 (1st Cir. 2018). Although this decision by the First Circuit Court of Appeals is not controlling in Pennsylvania, it provides some helpful perspectives under the ADA.

While making a bank deposit on behalf of his employer, the assistant manager was attacked at gun point, hit over the head and had his car stolen. Thereafter, he requested a fixed work schedule at a Burger King located in a safer neighborhood, asserting PTSD and major depression disorder. While the employer initially granted the request, management later required the employee to resume working rotating shifts, as all assistant managers at the Burger King franchises are required to do and as was necessary for equal distribution of work among managerial staff. The employee resigned and sued, alleging that the employer failed to accommodate him with a fixed work schedule in violation of the ADA.

The First Circuit called the case “a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.” Because the Plaintiff was unable to work a rotating schedule, an essential job function required of assistant managers, the court ended his ADA action before the trial stage because he was not qualified for the position. The court wrote that “accommodating [Plaintiff] permanently would have had the adverse impact of inconveniencing all other assistant managers who would have to work unattractive shifts in response to [Plaintiff’s] fixed schedule.” The court also noted that although the employer initially granted the Plaintiff the accommodation on a temporary basis, that fact did not mean that rotating shifts was a nonessential function, and to find otherwise would “unacceptably punish employers for doing more than the ADA requires, and might discourage such an undertaking on the part of employers.”

One favorable fact for the employer in this case was that its advertisement for the position listed the need to work rotating shifts as a requirement, and the job application filled out by the plaintiff when he was hired made clear that all managerial employees had to be able to work different shifts in different restaurants. This is a good reminder that documentation of essential job functions, including job descriptions, job applications, and even job advertisements, is important evidence in a “failure to accommodate” claim. Further, the rationale behind the essential job function may also be important to the court, as well as whether the employer uniformly required all employees holding the same position to perform the job function at issue—in the Burger King case the court did not question the employer’s need to evenly distribute work among its managers, which appears to have been a consistent practice within the franchise.

Another important takeaway from the Burger King case is that granting temporary accommodations may be beneficial to the employer if a failure to accommodate claim is later filed. Granting a temporary accommodation gives the employer the opportunity to demonstrate that its approach to requests for accommodation is not overly rigid, which is often key to prevailing in ADA litigation. Granting a temporary accommodation also allows a time period during which it can be determined with some certainty whether the employee can perform the essential job function at issue. In the Burger King case, by allowing a temporary accommodation the employer eliminated any question as to whether the employee would be able to work the rotating schedule because even after the temporary period he was still unable to resume the required schedule.

When considering a temporary accommodation, the risk for the employer is that a court could view the temporary accommodation as evidence that the job function is non-essential or that the employer can reasonably accommodate the employee on a permanent basis without undue hardship. The employer in the Burger King case was fortunate in that the court took the opposite view and reasoned that it would be counterproductive to penalize employers who offer accommodations that temporarily eliminate an essential job function. Failure to accommodate cases are always highly individualized and different courts will reach different, sometimes contradictory, conclusions. Employers should discuss with their employment counsel whether to grant a temporary accommodation in any particular circumstance. If a temporary accommodation is granted, the fact that the accommodation is only temporary, and not indefinite or permanent, should be communicated to the employee in writing as part of the “interactive process.”